Shane v Kelly's Bakery Pty Ltd
[2014] VCC 586
•16 May 2014
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01687
| IRENE SHANE | Plaintiff |
| v | |
| KELLY’S BAKERY PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 5 May 2014 | |
DATE OF JUDGMENT: | 16 May 2014 | |
CASE MAY BE CITED AS: | Shane v Kelly’s Bakery Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 586 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering consequences of injury to right lower limb – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon Lawyers |
| For the Defendants | Mr P Jewel SC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
1 Irene Shane suffered injuries to her right lower limb in the course of her employment with the first defendant when she stepped onto a steel grated drain cover, slipped and fell. She seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of those injuries.
2 Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of Ms Shane’s right lower limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequence of it is, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c) of the Act
7 Ms Shane submits that the pain and suffering consequence of her injuries can fairly be described as being more than significant or marked and at least very considerable. The defendants deny this is so. It is this issue which falls to be determined by the Court.
Background
8 Ms Shane immigrated to Australia from the United Kingdom in 1976 when aged twenty-one. The evidence did not disclose her level of education. However, in this country, she has performed a variety of unskilled factory-type jobs, including that of a picker/packer and process worker. She has also been the proprietor of what was described as a “bakeshop”. In 2003 and 2004, she operated a craft and tea room business in Loch in South Gippsland. That business operated at a loss and was sold by her.
9 At the age of fifty-one, Ms Shane commenced employment with the first defendant in March 2006 as a cook and sales assistant. She worked an average of 24 hours per week – eight hours on each of three days per week.
10 By 2008, in addition to her work for the first defendant, Ms Shane was also employed at Grantville Lodge, an establishment conducting camps for children and adults. She was employed there as a casual cook. Her hours of work varied, depending on whether or not there was a camp at the lodge. It was reasonably busy in the summer and much quieter in the winter months.
11 On 20 November 2008, Ms Shane slipped and fell at the first defendant’s premises, suffering fractures of her right tibia and fibula. She was taken by ambulance to the Korumburra Hospital and from there to the Latrobe Regional Hospital. There, she was treated by Mr Peter Smith, orthopaedic surgeon, and underwent surgery involving the fitting of a rod and screws to her right lower leg. Her recovery from surgery was complicated by the development of infection and later, development of a Deep Vein Thrombosis (“DVT”) in the leg. The latter condition required her to be readmitted to hospital in Warrigal for a time. She was treated with Warfarin.
12 The rod and screws remain in situ until the present time.
13 Following the accident, Ms Shane was off work for about eight months. She, in due course, returned to part-time employment at Grantville Lodge, working four hours per day. She never returned to work with the first defendant. She says that this was because her work there required her to spend most of her time on her feet on a concrete floor.
14 At Grantville Lodge, her hours of work gradually increased. She was in time promoted to manager of kitchen and cleaning staff. She worked on a carpeted surface most of the time. Notwithstanding, she experienced some ongoing problems. She could not kneel on her right knee and had difficulty squatting. She said she found it difficult to cope in the job but had a sympathetic boss, which made things easier. Some of her duties were administrative in nature.
15 Ms Shane continued at Grantville Lodge until October 2011, when she and her husband and children moved to Heathcote, a considerable distance from Gippsland. At Heathcote, she obtained employment with Juliana Lodge, preparing breakfasts. She worked four hours per day, four days per week.
16 Ms Shane worked at Juliana Lodge for about a month and then resigned. In her oral evidence, she said that she had resigned because it was too hard on her ankle and knee. She did not mention these problems in either of her two affidavits sworn in support of her application in September 2012 or May 2014.
17 In February 2012, Ms Shane was examined by Mr Michael Shannon, orthopaedic surgeon, at the request of the defendants’ claims agent. Mr Shannon obtained a history from Ms Shane at that time that she had obtained the job as a breakfast cook in Heathcote but this had only lasted two weeks “because her husband broke his hip”.[4] In cross-examination, Ms Shane conceded that her husband had broken his hip at that time and that she did look after him for a time. She added that she would not have stayed in employment with the Juliana Lodge for long in any event and that it was “a good excuse to get out”.
[4]Defendants’ Court Book (“DCB”) 2
18 I am not satisfied that her resignation form Juliana Lodge was related to her leg condition. Her omission of any reference, in her affidavits or oral evidence in chief, to her need to care for her husband at the time of her resignation does, in my view, reflect poorly on her credit.
19 Soon after that time, Ms Shane commenced a pathology course at the Bendigo TAFE. This took some six months. She received a certificate and was qualified to take samples of blood from patients in pathology facilities. She was employed soon after by Dorevitch Pathology (“Dorevitch”). She commenced part-time employment with Dorevitch in Elmore, two days per week, four hours per day. She described her employment as “quiet”. This was further increased to a total of four days per week after transferring to the Kyneton branch of Dorevitch.
20 At the time she swore her first affidavit in September 2012, her work with Dorevitch required her to drive considerable distances, collecting blood and tissue samples. She travelled 500 to 600 kilometres per week over four days.
21 Ms Shane later was transferred to the Dorevitch facility at the Heathcote Hospital. There she worked four hours per day, five days per week, a total of 20 hours per week.
22 In February 2013, Ms Shane and her husband separated. In November 2013, she moved to live in Pakenham with her youngest son. She retained her employment with Dorevitch, working at its Berwick facility. There, she worked five days per week, four hours per day and, in addition, worked every second Saturday for three hours. In her oral evidence, she stated her only other source of income was $200 per week rental paid to her by her son. In oral evidence, she said that she would have liked to supplement her income by doing other work, had it not been for her injuries. She would probably have taken on additional bakery work as a cook.
23 Ms Shane’s medical treatment has been relatively scant. After her DVT, her Warfarin therapy was managed by the Korumburra Medical Centre for about three months until early 2009. In February and in May of 2009, she was seen by Dr Stainsby at that Centre. She did not re-attend at that Centre between May 2009 and October 2011, when she moved to Heathcote. It would appear that during that time, she had no treatment at all. In oral evidence, she stated that she had seen a chiropractor in Inverloch about that time in relation to her back but not her leg.
24 In Heathcote, she attended upon various general practitioners at the Heathcote Hospital where she was employed by Dorevitch. The clinical notes relating to those visits were tendered.[5]
[5]Plaintiff’s Court Book (“PCB”) 39
Diagnosis of injury
25 It is not disputed by the defendants that as a consequence of the slipping injury at work on 20 November 2008, Ms Shane suffered a compound fracture of her right lower leg (tibia and fibula) with a later infection, treated by antibiotics, and a DVT, treated by way of Warfarin.
26 X-rays taken in April 2013 were reported as showing a tibial intramedullary rod with locking screws proximally and distally, passing across “solidly healed” fractures of the tibia and fibula.[6]
[6]PCB 44
Consequences of injury
27 Any injury involving a compound fracture would undoubtedly be distressing and debilitating, at least in the short term. It comes as no surprise that Ms Shane was certified unfit for any employment for some eight months following the accident.
28 However, any determination of the injury for the purposes of this application must be made as at the present time. It is the current consequence of the injury that must be considered.
29 Senior Counsel for Ms Shane submitted that there were eight consequences which, when looked at collectively, should lead to a finding that the consequence of injury was more than marked or significant and was at least very considerable. The consequences that he relied upon were:
(a)The pain suffered by Ms Shane, including leg cramps;
(b)The reduction in her work capacity, in that she was effectively unable to work in circumstances where she would remain on her feet for long periods, especially on concrete or unforgiving floors;
(c)She was no longer able to participate in her pre-accident gardening activities anywhere near to the extent that she had previously done;
(d)She was unable to wear high-heeled shoes;
(e)She was unable to engage in horse riding activities;
(f)She was unable to dance to the same extent that she had prior to her injury;
(g)She was unable to engage in extensive shopping or window shopping as previously; and
(h)She is limited in the activities that she can perform with her grandchildren.
30 I accept that Ms Shane suffered from a nasty compound fracture of her tibia and fibula which was later complicated by infection and by the development of the DVT. These later complications were temporary and there is no suggestion in the medical evidence before me that the infection or DVT have any ongoing consequence for her. She is left with a rod and plate in her right lower leg. However, there is no evidence that that hardware is causing complications or that it should be removed.
31 Notwithstanding the nature of the injury and the complications that initially followed it, I am not satisfied on the evidence before me that Ms Shane has discharged the onus of establishing that the consequence of the injury at the current time satisfies the “at least very considerable” test.
32 I take into account that, at the present time, she takes little medication. On occasions, she takes one or other of Panadol Osteo or Nurofen , non-prescription medication. When the pain is severe, she says that she can use up to eight of one or the other each week; that is, about one tablet per day.
33 Her treating orthopaedic surgeon was Mr Peter Smith of Traralgon. He does not appear to have seen Ms Shane since March 2009, approximately five months after the surgical procedure conducted by him.
34 In Heathcote, she consulted no medical practitioner in relation to her leg from the time of her arrival in October 2011 until about April 2013, when it appears that a Dr Samah Mansour referred her for an x‑ray of the right tibia and fibula. The x‑ray was reported as showing nothing of relevance other than the intramedullary rod with screws passing across solidly healed fractures to the tibia and fibula. Dr Mansour was a doctor practising at the Heathcote Hospital. The clinical notes of that practice were tendered.[7] Those notes indicate that Ms Shane was seen by one or other doctor at the hospital on about nine or ten occasions between April 2013 and November 2013.
[7]PCB 38-44
35 On 1 May 2013, she complained of leg cramps which have improved with Crampeze (a medication to help the effects of muscular cramping) and pain in the leg after walking.
36 Attendances at the hospital on 2 September, 1 October, 14 October, 17 October, 11 November and 18 November 2013 appear to be for matters unrelated to this application.
37 On 21 October 2013, she attended in respect of a mouth ulcer and complained of pain and tenderness in the calf of her right leg. There was a bruise noted at the front of her leg. It would seem that she was referred for a Doppler test on the following day which was reported as showing that the deep veins were patent and compressible, with no DVT.[8]
[8]PCB 42
38 In her affidavit sworn three days before the commencement of the hearing, Ms Shane swore that she has cramps in the calf of the right lower leg at night, often three to four times per night. The impression given was of a significant, current cramping problem. In her oral evidence, she conceded that her cramping had indeed improved after taking Crampeze. The Heathcote Hospital notes noted improvement in cramps following Crampeze in May 2013 and no further complaint of cramps or treatment for them. In her oral evidence, she was asked when she had last taken Crampeze and indicated it was about a week prior to the hearing. She said: “My daughter had some, so I got a box off her as well.”[9] I found that evidence unconvincing. If her cramping problems were anything like those described in her recent affidavit, I consider it likely that she would have seen a doctor about them.
[9]Transcript (“T”) 43
39 Apart from the few consultations at the Heathcote Hospital referred to above, Ms Shane appears to have consulted no medical practitioner since May 2009 in relation to her right leg. She has resided in Pakenham since November 2011 and has not consulted any practitioner since then. She has made no attempt to see her treating surgeon, Mr Smith, since early 2009.
40 Whilst I accept that Ms Shane suffers from some discomfort if she remains on her feet for long periods and on unforgiving surfaces, and that she has some difficulty in kneeling and squatting, I do not accept that the level of pain suffered by her is significant at the current time. An indication of this was given in her oral evidence when she stated that she had difficulty dancing in high heels but was able to do so if she took her shoes off. It is my view that dancing shoeless and without the support of any footwear would not be indicative of a person suffering significant pain in her ankle or knee.
41 Whilst I accept that Ms Shane may have difficulty engaging in employment requiring her to be on her feet for lengthy periods on unforgiving floor surfaces, the evidence is that she has retrained and obtained work with a pathology company taking blood samples from patients at pathology clinics. Her employer has pathology businesses in a number of different locations in Victoria. Her evidence was that she enjoyed her pathology work and enjoyed the interaction with patients.
42 I accept that the range of employment opportunities open to her has been reduced but that she is, nevertheless, engaged in responsible and satisfying pathology work.
43 Ms Shane, in oral evidence, referred to pre and post-accident gardening activities. She described gardening as a passion and described caring for a relatively large garden when she had lived at Nyora some time prior to moving to Jam Jerrup prior to her accident. She described her garden at Jam Jerrup as being approximately the size of the courtroom, which I consider to be relatively modest. She was cross-examined as to the amount of time that she spent gardening prior to her accident. Her evidence was that she could spend up to two full days per week gardening, depending, to an extent, on the weather conditions. It was put to her that if she was working 24 hours per week over three days at Kelly’s Bakery, a further period of approximately 20 hours over two days at the Grantville Lodge, spent a day per week shopping or window shopping, and regularly rode horses, it would leave her little time for gardening as alleged by her. I think there was merit in this suggestion and that Ms Shane is likely to have exaggerated the time she spent in the garden. I note that she made no mention of her prior gardening activities or of any problems associated with gardening in either of the affidavits sworn by her in support of her application.
44 Further, her evidence is that since moving to Heathcote, and then later to Pakenham (for reasons unconnected with her injury), she has not resided at premises with a significant garden in need of tendering. She described her present accommodation as being a rental home with a small lawn, which was mowed by her son, and some tan bark with some bushes and trees which were not in need of regular attention.
45 Ms Shane, in her oral evidence, stated that she liked to wear high-heel shoes and that this was uncomfortable since her injury. Nevertheless, if she attended functions, such as a wedding, she wore high heels, although tended to remove them from time to time during the course of the function. It was at this point in her evidence where she referred to dancing without shoes. I accept that the wearing of particularly high heels would be uncomfortable for her and that she may prefer to wear lower heels or shoes without heels. Ms Shane made no mention of problems of wearing high heels or of her desire to do so in either of her affidavits sworn in support of her application.
46 In relation to horse riding, Ms Shane has never owned a horse of her own but had the use of a friend’s horse for the time that she resided in Jam Jerrup. I accept that prior to her injury she and a friend rode once every week or fortnight.[10] I accept that in the period immediately after the accident, she would have been quite unable to ride horses. When she moved to Heathcote, she did not have access to horses to ride. On her return to Pakenham, she said that she would have been able to ride the horse belonging to one of her friends but for her injury. However, she has never attempted to ride a horse since the accident. I am not convinced that she is unable to ride a horse, at least in a quiet manner. She may not be able to engage in some of the more vigorous equine activities, but her evidence was that her previous riding was in the form of trail riding rather than more strenuous riding activities. Ms Shane made no reference to horse riding activities or to a current inability to ride in either of the affidavits sworn by her in support of her application.
[10]T9
47 In oral evidence, Ms Shane stated that prior to her injury, she danced “nearly every night” with her girlfriend.[11] She now dances without shoes on occasions. She no longer lives close by to the girlfriend with whom she regularly danced. I do not accept that Ms Shane danced basically every night prior to the accident. I accept that dancing in high heels would probably now cause problems for her. I consider the fact that she is prepared and apparently able to dance without wearing any shoes for support is not indicative of significant ankle or knee pain. Problems with dancing were not referred to in either of her affidavits.
[11]T8
48 In her oral evidence, Ms Shane stated that prior to her injury, she attended weekly shopping trips with her sister, involving window shopping in the main. She said that she would have difficulty doing that at present.[12] I accept that she may have some difficulty walking on concrete pavements for long periods but I am not satisfied that the loss of her window shopping is of significant consequence for her. Ms Shane made no mention of her window shopping excursions in either of her affidavits.
[12]T10
49 In relation to activities with her grandchildren, Ms Shane stated that she used to take her grandchildren on walks prior to her accident and is now significantly restricted in doing so. I accept that she may be restricted in lengthy walks, especially on concrete surfaces. I am sure that there are other quality activities that she is able to do with her grandchildren.
50 Much of the medical material tendered in evidence was of little assistance to Ms Shane.
51 Her former general practitioner, Dr Stainsby, reported she had last seen Ms Shane in May of 2009, some six months after her injury and surgery. It was noted at that time that her right calf had some muscle wastage evident. She thought that an exercise program and gym membership might be of benefit to her recovery. No current opinion was sought from Dr Stainsby.
52 Mr Peter Smith, orthopaedic surgeon, last saw Ms Shane in March 2009, at which time she was unable to perform her duties as a cook or any other standing work. He did not foresee that problem to continue indefinitely and he thought that her condition would improve markedly in the following two to three months. No current opinion was sought from Mr Smith.
53 Mr John O’Brien, orthopaedic surgeon, saw Ms Shane on a medico‑legal basis at the request of her solicitors in March 2014. The history he took was one of fluctuating pain over the anterior aspect of the right knee, extending up into the lower thigh. In oral evidence, Ms Shane denied any thigh pain. Mr O’Brien described her current physical signs as:
“… indeed very mild, associated with some anterior knee pain, which clinically appears to be associated with some mild chondromalacia in the patellofemoral compartment.”[13]
[13]PCB 28
54 Mr O’Brien identified an anterior knee scar as the source of her slight restriction in knee flexion and in her ability to kneel. He also found some very mild restriction of right ankle extension. He considered her condition was stable. He thought she had a satisfactory prognosis.
55 Mr Michael Shannon, orthopaedic surgeon, saw Ms Shane at the request of the defendants in February 2012 and March 2013. On the earlier occasion, he considered that the prognosis for her leg was good and that her condition would remain essentially unchanged. Her complaints to him at that time included an inability to wear high heels. In normal shoes, she said she could stand for up to six hours a day. She told him of difficulty kneeling and walking for more than an hour. She said she could drive halfway to Melbourne. I note that her employment with Dorevitch in Heathcote initially involved her driving 500 to 600 kilometres each week. I do not consider that her ability to drive lengthy distances is greatly affected by her injury.
56 In March 2013, she told Mr Shannon that she had been getting a few cramps in her leg, which occurred if she stretched when swimming, or “occasionally” in bed at night. He considered that her fractures had united in excellent alignment and that she had no deformity at the fracture site and no shortening of the limb. She had a minimal restriction of flexion of her knee and mild limitation of movement in the ankle and subtalar joints. She was able to squat but had some difficulty with kneeling.
57 In relation to her current employment with Dorevitch, Ms Shane stated that she was able and willing to work longer hours if such hours were made available to her.
58 In the end, although I am satisfied that Ms Shane suffered a nasty compound fracture of her tibia and fibula, I am not satisfied that the current consequence of that injury is more than marked or significant. Put another way, I am not satisfied that the consequences, when viewed collectively, are, when when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as more than marked or significant and at least very considerable.
Conclusion
59 For the reasons expressed above, I am not satisfied that Ms Shane has suffered a “serious injury” as that term is defined in the Act.
60 Accordingly, her application will be dismissed.
61 I shall hear the parties in respect of costs.
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